Cost Efficient Dispute Resolution

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Whiplash Claims - Expert's Fees

Whiplash Reforms

From 1st October 2014 new Government rules regulate the fees that can be paid in Whiplash claims under the existing RTA (Road Traffic Accident) protocol. These have an effect on the amount of fees that can be charged by experts involved in such cases.

The changes aim to:

control the use of medical reports

ensure that in most cases only one medical report is obtained

ensure the expert is independent of any medical treatment; and

limit offers until after a fixed cost medical report has been obtained and disclosed

Under the changes, claims firms have a duty to make sure the claims they are submitting have a realistic chance of success, as well as ensuring full evidence is provided to back up any allegations. Firms will also have to carry out thorough audits of how data they use has been gathered, so they can no longer turn a blind eye to whether leads have been found by illegal marketing texts and calls.

A result of this is that neither party may have a direct or indirect financial interest in an intermediary making the medical report. In this context parties include the claimant’s representative and the insurer who will thus be barred from owning or having any interest in a medical reporting agency. This is achieved by new Paragraph 1.1(10A)(b) RTA Protocol.

Pre-Medical Offers

Defendant’s pre-medical offers have been banned until a claimant representative obtains an initial report outside the fixed medical report fee scheme. This is achieved by new Paragraph 7.44A of the Road Traffic Accident Protocol.

Experts must be registered:

A new independent online system (Medco) is being created to allocate medical experts to ensure proper independence exists between the expert and the commisioning party. This hub is being funded by the Association of British Insurers (ABI). As part of this process there will be mandatory accreditation by Medco which will include peer review with Experts failing to meet the standards facing sanctions such as removal of accreditation or limitations placed on their accreditation.

From 6 April 2015, medico-legal experts and MROs will need to be registered with MedCo in order to provide initial medico-legal reports for RTA soft tissue injury claims. Experts interested in registering should go to the MedCo website to register their interest.

Notes:

Save in exceptional circumstances, no fee may be allowed for the cost of obtaining a report from a medical expert who—

has provided treatment to the claimant;

is associated with any person who has provided treatment; or

proposes or recommends that they or an associate provide treatment.

These figures are set out in the new CPR 45.19(2A). The cost of obtaining a further report from an expert not listed above is not fixed but any cost incurred must be justified.

A first medical report in a soft tissue claim must be obtained within this scheme or the claimant will not be able to recover the cost of that report (CPR 45.19(2B) and CPR 45.29(2B)).

CPR 36 has been amended to provide that as long as a claimant follows the new scheme then a defendant’s pre-medical report offer shall be of no effect under Part 36.

If a claimant subsequently obtains a first medical report outside the scheme then the defendant’s pre-medical report offer retrospectively becomes a valid Part 36 offer with the usual consequences.

If a defendant makes a pre-medical report offer and the claimant follows the scheme then the claimant may accept that offer at any time unless it is withdrawn. Upon acceptance of the offer at any time the claimant will not be liable for the defendant’s post offer costs from 21 days after the offer. Furthermore the claimant will be entitled to recover all of its own costs from the defendant up to the date of acceptance, however long that is after the offer was made.